Help with cca check-my agreeement here.

[bcfc4ever]

Hi I need some help

 

I got into some financial difficulty a long time ago, and Ive been trying to pay off my debts since then. I have a number of debts that have gone to dca's and Ive been paying them and increasing payments when they asked. Some of them I can handle, but some of them are way too agrressive, so I decided to try and do something. I have cca'd ( think thats the right term) 3 of them and I have received back the following

 

I have also received back 2 application forms ( Not the agreements) with standard terms and conditions. One of them has PPI Insurance

 

I requested the information on 2 December 2009, and only received this today. I wrote back after the 12+2 days and said that they were in breach and stopped my payment for December.

 

I have 3 questions

 

1.) Are these agreements enforceable? They have provided me with application forms for the other 2 accounts

 

2.) I have PPI insurance on one of them, can I claim this back

 

3.) Whats my next step?

 

Thank you for your help

 

 

[MARTIN3030]

Moved to appropriate forum

[bcfc4ever]

Thank You. Can anyone help on this at all?

[bcfc4ever]

Hi can anyone help with this at all??????

[seriously fed up]

I would dearly dearly love to be more positive for you, but I am afraid I just cant .

The Consumer Credit Act only makes an account unenforceable if its missing prescribed terms - rate of interest, amount of credit, and repayment arrangements. Its quite clear that these are there, and even worse (from your point of view) on the same page as your signature (I am btw, taking the naive view that this IS YOUR agreement and they havent sent someone else's). Whether the other two are enforceable is impossible to say without seeing them, but if they look like this, then I would have thought so. I did note though that one of the papers you put up (the last one) was for a Budget card. While their loan agreement might be ok - in this case - their card agreements might not. Worth putting the other agreements up for us to have a look.

Re PPI, this would depend mainly on two things

 

1. was it missold - for instance, some PPIs exclude anyone who is self employed, so selling it someone self employed is clearly misselling as it would be of no value to them
   
2. who is taking the risk (or who is taking the profit?) - MBNA lost a case in South Shields late last year because they didnt own up to the card holder that it was MBNA who she was insuring with.
   

Your next step - put up the other agreements. Re the loan, sorry but ....

[bcfc4ever]

Hi there, Thanks for that, My thoughts were that the agreements I posted wasnt defective. However I think that the other two they sent me are defective. No prescribed terms, interest rate etc etc. Could you give me your opion on these two and let me know whether you think Im correct in thinking these are defective. Here are copies of the other ones- they didnt send me copies of the agreement, just copies of the application form

With regard to the PPI, my approach on this is straight forward. They didnt ask what my circumstances were, they didnt check the suitability of the product. Ive written to them requesting a refind of the, and Im confident they will refund it back

 

Here are the other two applications (not agreements) they sent me:

 

Personal Reserve Account

 

 

Budget Card

 

[seriously fed up]

So these are two bits of paper for one account? Yes? Was it signd before 2006?

Its REALLY difficult to read (fairly typical of a microfiche copy), BUT, I would have to say that I would have serious doubts about whether they could enforce one for several reasons

 

1. there is no way that the document headed personal reserve (the second one on the page) is enforceable on its own. Even though you have blacked out a good bit of it to keep your personal details to yourself, it doesnt look to me as if there is a prescribed term in sight
   
2. that then puts the focus on the other document, which as I say is really hard to read (especially with my head at 90 degrees!) - but basically as it has come up its just not legible (I took a copy and put in Word, but its not readable there either, or in Digital Image). Perhaps you can have more luck with the original. What you would be looking for are the prescribed terms that I mentioned in my last posting (credit limit - or how this will be determined - rate of interest and repayment arrangements) Remember they ALL need to be there, so if ANY are missing then your case would be that it breaches the requirements of s61, so can only be enforced by a court under s65, but s127(3) prevents the court from issuing an order because the signing requirements havent been dealt with.
   
3. However, lets be really pessemistic and say that they ARE there. That is not enough. They have to be there when you signed the other document - you had to be aware of the terms and conditions and in particular the prescribed terms. So the two documents would need to be "attached in some way", and I have to say that I cant see how that would be possible. If you look at the bottom of the signature document (the one you have signed) it talks about "moistening along the edge". This is a mailer. The other side will have the address the form was to go back to and not the T&Cs. In any event I dont really think you would put a landscape document on the back of a portrait document! So, unless you can come up with some method by which this was done - for instance (and I dont think it likely) the mailer was detached from the T&Cs. More likely imo is that they sent you the T&Cs when your application was accepted, which is no use - as you havent signed them.
   

So some homework in there for you

 

• one account signed on /before 2006?
  
• are there prescribed terms in the T&Cs they have sent? Or is to such a poor copy that even looking at what they sent, its still not legible (which on its own would make the account unenforceable)
  
• could the T&Cs have been connected to the other form at any time and in any way that you can think of/ remember?
  

Re PPI, they might have been deficient in their selling of ppi to you, but of and by itself I dont this would constitute misselling. What you would be looking for would be some aspect of the policy that, in your circumstances, would mean you wouldnt be able to claim (about as much use as a chocolate fireguard). One that often comes up is if you are self employed - many (NOT ALL) exclude the self employed (and those that dont exclude them are usually so defined that they might as well exclude them - one I saw recently covered the self employed but to claim you had to show you werent trading. How you prove a negative I really dont know, but the net effect is that you arent self employed any more. So if you are self employed you can only claim if you arent self employed any more!)

Hope this helps

Edited January 30, 2010 by seriously fed up

[bcfc4ever]

Thanks for that. Ive done my homework:), and hopefully answered your questions

 

one account signed on /before 2006?

These are two Accounts. Personal Reserve was signed in 1998. BudgetCard was signed in 1993

are there prescribed terms in the T&Cs they have sent? Or is to such a poor copy that even looking at what they sent, its still not legible (which on its own would make the account unenforceable)

They have sent me T&C's for the Personal Reserve, and the copy is illegble. I can just about make out a note on Interest Rate which says the rate before September 1996 is 14.9% up to £3000 and 13.)% after this. However I signed the Application form in January 1998. They appear to have sent me an illegible T&C for something that predates my application by 16 months! On the BudgetCard theyve sent me T&C's which says on section 2b "The rate of interest which the Company may vary from time to time is currently 1.8%" Neither of these T&Cs have my signatures on them, and I dont see how they could have been a part of the original application process

could the T&Cs have been connected to the other form at any time and in any way that you can think of/ remember

No the T&C's are a different size to the application forms.

 

I will try and post copies of the T&C's again

[bcfc4ever]

Finally, I have drafted this letter to send off. Let me know your thoughts

 

I wrote to you on xxxxxxregarding the above accounts and received a response from you dated xxxxx which therefore means that these accounts remain the subjetc of a lawful serious error

 

My request for a copy of my properly executed Consumer Credit Agreeement remains outstanding. You have failed to comply with my request ; instead you habve supplied illegible copies of application forms fir Account Number xxxxxxxxxxxxxxxxxx and xxxxxxxxxxxxxxx

 

The act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above accounts. U may ask for this on demand provided that a fee of £1 is paid, This fee was sent with my original letter date xxxxxxx.

 

The reasons why I require copies of the agreement are:

 

1.) I need to be satisfied that the agreement is signed by me and the Company

2.) That all the presecribed terms are contained within the agreement itself

 

Because you have failed to reply to my request you are not entitled to take any steps in whcih to collect or chase any monies owing ot prejidice me in any of the following ways

 

a) Your are not legally entitled to demand any payment on the accounts nor am I obliged to offer any payment to you

b) You are not entitled to add further interest or any charges to the accounts

c) You are not entitled to pass accounts to a third party

d) You are not entitiles to register anyt information in respect of the account with any credit reference agency

e) You are not entitled to issue an default notices

 

If ytou take enforcement action against me you will be in breach of s77 Consumer Credit Act 1974 and I may seek injunctive relief and damages

 

Furthermore I note there is Personal Protection Insurance in place. Please confirm from your inspection of the documents you hold, and supply the following:

a) Full name of the insurance company

b0 Full address

c) Copy of the policy and if separate a copy of the certificate giving the policy number

d) The actual premium

e) The date of payment of such premium was made

f) Confirmation of IPT paid to you and or the insurers

g) Copy of your ledger showing districbution of monies

h) Demands and needs fact find statement for the PPI

i) Correspondance form you with me regarding the PPI

j) A copy of the proposal form that was forwarded to your insurer

k) Telephone call recordings or transcripts of telephone calls between me and representatives of your company when the PPI was discussed

l) details of commission paid/received

m) Alternative quotes with and without payment protection insurance

n) Any underwriting sheets you may have in relation to PPI

 

I await your response

 

Any thoughts?

[seriously fed up]

OK well done. If you cant read the T&Cs then its unlikely that you will be able to scan and post up a copy here that anyone else can read. So, I wouldnt bother.

Now comes the hard part - or the start of the hard part. M&S - as will practically every other lender - will insist that what they have sent you fulfils their obligations under s78. Now there are a couple of things here

 

1. did they tell you that what they sent you is a copy of YOUR agreement? If it is, then arguably they havent done so
   
2. OR did they say this was a reconstruction of your agreement, which they can now do following the judgement at Manchester just before Christmas? On the other hand, anything they send SHOULD be readable (or what's the point in sending it)?
   

Given what you said about the dates on the T&Cs and your date of signing, the first of these is probably better, because, if this gets to court, they will have a hard job going back on it as they have said "this is your agreement with us".

What you will need to do is to write to them saying that the documents they have sent are not enforceable in law. You could adapt the letter that you will find here http://www.consumerforums.com/resources/templates-library/86-debt-collectors/582-possible-letter-when-a-questionable-agreementapplication-is-sent - this should take you right to it, but if it only goes to the "menu" its letter 9. You might want to explain that the signature document doesnt have any prescribed terms and that the T&C do not and cannot belong to the sig document. But basically its what it says in the red paragraph - they are in breach of s60 and s61 (signing of documents) and in particular s61 (1) (a) which says "61.—(1) A regulated agreement is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,", so because of s65 they can only enforce by court order, but s127 (3) "The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)." means the court cannot do this (or shouldnt) even if minded to do so (this was why I was asking about when you signed up as the 2006 Consumer Credit Act repealed s127(3), though not retrospectively).

Its important to realise, though, that in due course, you will get a letter back from them telling you that they have complete confidence in the documents sent. They may even say that they have had their legal people look at and are confident of being able to enforce. But if this is all they have - an application form that you have signed with some illegible T&Cs that cannot have been connected to the application form (either in content or process) then I really think they would only have one chance - that you have the misfortune to meet up with some judge who will operate on the basis that "you took the money, you spent the money, now pay it back". The fact that in law M&S have no means of enforcement doesnt seem to bother these people very much. There have been at least three cases on here where this has happened in the last few weeks. Here endeth the health warning. The other side of this is that a lender faced with the kind of problem posed here of just not having the necessary to be able to enforce in law is that they may come up against a judge who actually enforces what the law says, rather than indulging their own personal morality and prejudice. I would still like to think that there are more of these than of the other variety.

I have just noticed your draft letter - you must have been posting at the same time as I was getting started on this. Why are you asking for the documents again? You are just giving them the chance to come up with a more convincing lie. I would write to them putting the "Reserve" account into dispute now (as I said I think they have you on the other one). Or are there others? If there are, then there is a letter here - adapt this. You dont need to go all round the houses explaining why you want this - you have a statutory right (of sorts, thanks to HHJ Waksman). You are just exercising them.

I would get the letter off to them about the Reserve Account. I think you have a good case, but just be clear that its unlikely they are going to look at this and say "oh, right!". Even when they are wrong and know they are wrong, they will never admit it.

[bcfc4ever]

Hi

 

Thanks for that. Ive got the letter. Im going to send it as it is.

 

I wont put anything in about PPI, because that will confuse matters I think

 

Fingers crossed!

 

Thank you for your letter of xxxxxxxxxxxxxxxx to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement executed by yourselves on the xxxxxxxxxxxxxxxxx

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3).

 

I am granting to you a further 21 days to produce a copy of an executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing personal data relating to me on this matter.

 

Yours sincerely

[seriously fed up]

ok cheers - let us know how you get on

SFU:)

[bcfc4ever]

Thanks, it will be good to give them something back to think about for once